SZVZY v Minister for Immigration & Border Protection

[2015] FCCA 2622

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVZY v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2015] FCCA 2622

Catchwords:
MIGRATION – Refugee Review Tribunal.

PRACTICE AND PROCEDURE – Application for reinstatement – whether applicant’s explanation for failure to appear at hearing of applicant’s application for an extension of time to seek judicial review of decision of Refugee Review Tribunal was reasonable – whether application for extension of time was necessary in the interests of justice – whether explanation for failure to seek judicial review in accordance of s.477(1) of the Migration Act 1958 (Cth) was reasonable – whether applicant’s grounds for judicial review raised an arguable case for the relief sought – application for reinstatement dismissed.

Legislation:
Migration Act 1958 (Cth) s.477
Federal Circuit Court Rules 2001 (Cth) r.13.03C

Cases Cited:
Hunter Valley Developments Pty Limited v Cohen [1984] FCA 176; (1984) 3 FCR 34
Singh v Minister for Immigration and Citizenship [2013] FCA 813
SNSYE v Minister for Immigration and Citizenship [2010] FCA 500
Sharman License Holdings Ltd v Universal Music Aust Pty Ltd [2005] FCA 802
WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399
SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91
Vu v Minister for Immigration and Citizenship [2008] FCAFC 59
SZOZG v Minister for Immigration and Citizenship [2011] FCA 756
Kalanje v Minister for Immigration and Multicultural Affairs [2006] FCA 1618
SZIQP v Minister for Immigration and Citizenship [2008] FCA 169
SZHFX v Minister for Immigration and Citizenship [2008] FCA 355
Re Commonwealth of Australia;Ex Parte Marks [2000] HCA 67; (2000) 177 ALR 491
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
SZVZY v Minister for Immigration and Border Protection & Anor [2015] FCCA 1731

Applicant: SZVZY

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 125 of 2015

Judgment of: Judge Emmett

Hearing date: 23 September 2015

Date of Last Submission: 23 September 2015

Delivered at: Sydney

Delivered on: 23 September 2015

REPRESENTATION

The applicant appeared in person with the assistance of an interpreter.

Solicitor for the Respondents: Ms Nayomi Senanayake
(DLA Piper)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 125 of 2015

SZVZY

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. By an Application in a Case, filed on 30 July 2015, the applicant seeks an order setting aside Orders made by me on 23 June 2015, dismissing the proceeding before this Court pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) by reason of the applicant’s failure to attend a hearing scheduled on that day.

2. On 2 April 2015, the applicant appeared before a Registrar of this Court. On that occasion, the applicant was given leave to file further evidence and submissions in support of his application for an extension of time to seek judicial review of a decision of the Refugee Review Tribunal, dated 24 March 2014 (“RRT”). The hearing of the applicant’s application for an extension of time was set down for hearing on 23 June 2015, before me.

3. The applicant’s application for an extension of time was filed by the applicant on 19 January 2015. That application annexed the grounds upon which the applicant would seek to rely in the event that time was extended to him to seek judicial review of the RRT’s decision. Those grounds are as follows:

   “1. The Refugee Review Tribunal failed to understand the psychological trauma and failed to accept the psychological harm and made a wrong statement that I presented oral evidence without any difficulties.

   2. The Tribunal Member is not a psychologist and made an assessment that I was not hampered by my state of mental health to give evidence and make submissions. This is contrary to the psychological report which explains my mental health.”

4. I explained to the applicant that in the application before the Court this morning, the two significant issues that the Court needed to be satisfied about were: the reasonableness of the applicant’s explanation for his failure to appear at the hearing on 23 June 2015; and, whether the grounds of the applicant’s application for an extension of time have sufficient prospects of success, such that it would be in the interests of justice to set aside the Orders made by the Court on 23 June 2015 dismissing the proceeding for the applicant’s non-appearance.

5. The Court accepts that any balance of convenience favours the applicant.

6. On 30 July 2015, the applicant filed an affidavit in support of his application, affirmed 28 July 2015. That affidavit is as follows:

   “1. I am the applicant in these proceedings.

   2. Her Honour Judge Emmett dismissed my case on 23 June 2015 by reason of the failure to appear at the hearing.

   3. I submit Applicant's Submissions filed in Court on 18 June 2015 in which I have expressed my fear of persecution and my medical condition and the reasons for not attending on 23 June 2015 because of my serious disturbance and unfitness to attend the Court. Yet Her Honour made a decision and disregarded my submission as well as the evidence included in my Affidavit filed in Court on 19 January 2015 which includes the Decision Record of the Tribunal, correspondence to Honourable Minister dated 10/9/2014, Certificate of Baptism and Medical reports.

   4. I ask the Honourable Court to re-open my case and to accept my Application in a Case which I now file with this Affidavit.”

7. The applicant was given leave to give oral evidence in relation to that explanation and he reaffirmed that he “was in a state of fear and disturbance” at around the time of the hearing.

8. In cross-examination today, it was put to the applicant by the solicitor for the first respondent, Ms Senanayake, that he was aware that the hearing was to take place on 23 June 2015, that on 18 June 2015 he had filed submissions and that he had prepared these submissions with the assistance of a friend. It was then put to the applicant that, despite his protestation of being affected by a serious state of disturbance and unfitness to attend Court, he was able to prepare his submission on 18 June 2015 and that he had provided no medical evidence to support his allegations of serious disturbance and unfitness to attend the Court, which he said led him to remain in a state of confusion.

9. I accept that it must be a traumatic experience for an unrepresented applicant who does not speak English to attend a hearing before a Court and that it would be only natural to feel some real sense of apprehension, even “fear and disturbance”. However, the applicant did acknowledge that he was aware of his case and that he chose not to attend.

10. When it was put to the applicant in cross-examination that he was not unfit to attend Court but that he simply chose not to prosecute his case, the applicant then gave further evidence that he had been unable to walk due to his state of fear. However, there is no evidence before this Court to support the applicant’s allegation that he was so fearful, so confused and so disturbed or unable to walk, such that he was unfit to attend Court on 23 June 2015. Further, there was no communication received from the applicant, either by the first respondent or this Court, seeking an adjournment of the scheduled hearing.

11. In the circumstances, I am not satisfied that the applicant’s explanation for his failure to attend the hearing on 23 June 2015 was reasonable.

12. However, in the interests of justice, I will consider whether there is any utility in setting aside the Orders made by me on 23 June 2015. In considering that utility, I have regard to the grounds of the applicant’s initiating application, filed on 19 January 2015, in which the applicant sought that time be extended to him to seek judicial review of the RRT’s decision, dated 24 March 2014.

13. Pursuant to s.477 of the Migration Act 1958 (Cth), the applicant must file any such application for judicial review within 35 days of the date of the decision under review. In the present proceeding, the applicant filed his application some nine months after the date of the decision.

14. The principles relevant to consideration of whether to grant or dismiss an application for extension of time are well established. Those principles are the length of the delay (see Hunter Valley Developments Pty Limited v Cohen [1984] FCA 176; (1984) 3 FCR 34); the presence or absence of prejudice to the respondent (see Singh v Minister for Immigration and Citizenship [2013] FCA 813 at [15]-[18] per Besanko J); and the merits of the proposed appeal (see SNSYE v Minister for Immigration and Citizenship [2010] FCA 500 at [16] per Katzmann J).

15. In deciding whether to grant an application for an extension of time, the application should have such prospects of success as not to render the extension of time an exercise in futility (see Sharman License Holdings Ltd v Universal Music Aust Pty Ltd [2005] FCA 802 at [20]; WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399 at [9]).

16. If an application has no prospect of success, an extension of time – even for a short period – may be refused (see SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 at [23], citing Vu v Minister for Immigration and Citizenship [2008] FCAFC 59 at [14] per Jessup J, with whom Gyles and Besanko JJ agreed; SZOZG v Minister for Immigration and Citizenship [2011] FCA 756 at [24] per Flick J; Kalanje v Minister for Immigration and Multicultural Affairs [2006] FCA 1618 at [5]; SZIQP v Minister for Immigration and Citizenship [2008] FCA 169 at [22]; SZHFX v Minister for Immigration and Citizenship [2008] FCA 355 at [19]).

17. In support of his application for an extension of time, the applicant stated as follows:

    “1. I suffer serious medical condition. I am under the care of Dr John Jacmon. Friends assisted me and the Church to write to the Minister. I have a serious fear to return back. I was asked recently to depart Australia. I know if I go back I will die and be killed as per the evidence on file. I was not aware that I could lodge a Federal Court until the Church members made enquiries and was told that an application can be lodged. Time factor is very important and even though I was born Muslim I am now baptised and Jesus is helping me to persevere and accept my destiny.

    2. I ask the Honourable Court to understand my situation and accept my case because the Tribunal misunderstood the seriousness of my psychological situation.

    3. Please accept these reasons for extension of time.”

    (Emphasis added. Errors in original.)

18. Essentially, the applicant claims that he was not aware that he could lodge an application for judicial review of the RRT’s decision. The applicant was not cross-examined on that explanation but gave further evidence that he had twice sought Ministerial intervention in relation to his matter and that it was not until those requests were unsuccessful that someone told him that he could appeal to this Court. Again, such an explanation is not satisfactory to explain the delay which was significant.

19. There is unquestionably a public interest in the finality of an administrative decision. I accept that there may be a prejudice to the applicant in not extending time to him to seek judicial review of the RRT’s decision. However, in light of the finding I have made that the applicant has not raised an arguable case, I find the prejudice to be minimal.

20. The relevant principles are referred to in Re Commonwealth of Australia;Ex Parte Marks [2000] HCA 67; (2000) 177 ALR 491, in which McHugh J stated at [15]-[17] as follows:

    “15. An extension of time for seeking relief against a decision or judgment can only be granted if it is necessary to do justice between the parties. That means that it is necessary to have regard to the history of the matter, the conduct of both parties, the nature of the litigation and the consequences for the parties of a grant or refusal of the extension. Where an applicant seeks the issue of the constitutional or prerogative writs, a further factor must be considered. Those writs are directed at the acts or decisions of public bodies or officials, and the public interest requires that there be an end to litigation about the efficacy of such acts or decisions. In that respect, the present case, although important to the applicant, is not as important as many other cases. Nevertheless, the applicant is seeking the quashing of a decision of the AIRC made 17 months before he filed his application for relief in this Court.

    16. Independently of the merits of the case, I find it difficult to see how a person who, with knowledge of the decision, delays 17 months before seeking relief could ever be granted an extension of time to quash such a decision unless some conduct of the respondent or the public body or official had brought about the delay. As the Judicial Committee of the Privy Council said in Ratnam v Cumarasamy, "[t]he rules of court must prima facie be obeyed". The time for seeking certiorari is six times, and the time for seeking mandamus is twice, the period in which an application for special leave to appeal to this Court can be brought against a judgment or decision. The periods for applying for certiorari and mandamus give a person affected by an adverse decision or judgment ample time in which to commence proceedings in this Court. In all but very exceptional cases, they should be rigidly applied when, as here, more than one year has elapsed between the decision and the commencement of proceedings in this Court.

    (Emphasis added.)

21. The applicant was unrepresented before me this morning, though had the assistance of an Arabic interpreter.

22. I explained to the applicant that in respect of each of his failure to appear before the Court on 23 June 2015 and his delay in seeking judicial review of the decision of the RRT dated 24 March 2014, the two matters that would be operative on the mind of the Court would be his explanations for that conduct and the prospects of success of his grounds of review.

23. In relation to Ground 1, the applicant appears to cavil with the RRT’s finding that he presented his oral evidence without any difficulty. The RRT’s finding was made in the context of its consideration of an assessment by Dr Jacmon provided by the applicant in support of his application for a protection visa.

24. The RRT referred to its concerns about the accuracy and reliability of what Dr Jacmon might have understood to be the applicant’s claims. However, the RRT noted that, insofar as Dr Jacmon’s prognosis was concerned, Dr Jacmon did not suggest that if the applicant returned to Egypt, that his report was intended to be used as evidence of any difficulties that the applicant may have in presenting his case or any risk of future psychological harm.

25. The RRT found that the applicant attended the hearing and presented oral evidence to the RRT without any difficulties. Moreover the RRT noted that, having carefully observed him at the hearing, the RRT was satisfied that the applicant was not hampered by his state of mental health to give evidence and make submissions.

26. The RRT was not satisfied that, in those circumstances, there was a real chance that the applicant would suffer persecution for a reason identified by the Refugees Convention as a result of his psychological health and was not satisfied that there were substantial grounds for believing that as a necessary and foreseeable consequence of him returning to Egypt that there is a real risk he will suffer significant harm in relation to his psychological health.

27. It is well established that the RRT is not obliged to accept uncritically all claims made by an applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 per Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J).

28. The applicant’s complaint in relation to the finding by the RRT that he presented his oral evidence without any difficulties would appear to be more in the nature of cavilling with the finding made by the RRT. Such a disagreement invites merits review, which this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).

29. The RRT’s finding that the applicant presented oral evidence without any difficulties would appear to be open to it on the evidence and material before it and for the reasons it gave.

30. In the circumstances, Ground 1 would appear to have no, or no reasonable, prospect of success.

31. In Ground 2, the applicant asserted that the RRT member was not a psychologist and made an assessment that he was not hampered by his state of mental health in giving his evidence and making submissions and that such an assessment was contrary to Dr Jacmon’s psychological report explaining his mental health.

32. In paragraphs 35 and 36 of its decision record, the RRT expressed significant doubt as to whether, in the absence of an interpreter, the applicant had been able to convey his story accurately such that Dr Jacmon had adequate comprehension of what was being communicated to him. Paragraphs 35 and 36 of the RRT decision are as follows:

    “35. At the hearing the Tribunal submitted a Psychological Assessment Report, authored by Dr John Jacmon. It appears that Dr Jacmon assessed the applicant on 12 October 2013 and issued his report on the following day. The report contains an account of the applicant's claim, as purportedly narrated to Dr Jacmon by the applicant, that significantly differs from the applicant's evidence to the department and the Tribunal. It appears, however, that the assessment was conducted without the aid of an interpreter. The report states that 'the applicant's level of English language skills was poor'. However, it goes on to state that the applicant 'managed to provide enough information to enable the assessment to be completed'. In light of these observations, the Tribunal has significant doubt as to whether in the absence of an interpreter the applicant had been able to convey his story accurately and if Dr Jacmon had adequate comprehension of what was being communicated to him. The Tribunal, therefore, does not consider the applicant's account of his experiences as reflected in [the] report to be accurate or reliable. As a result, the Tribunal has given little weight to the psychological assessment report. The Tribunal does not draw any adverse credibility inferences on the basis of any inconsistencies between the account of the applicant’s experiences as relayed by Dr Jacmon and his protection claims as conveyed to the department and the Tribunal.

    36. The Tribunal has considered Dr Jacmon's assessment that on the basis of the applicant's 'presentation' and what he had conveyed to Dr Jacmon, 'it was hypothesised that [the applicant] had developed posttraumatic stress disorder'. The Tribunal has already noted its concerns in relation to the accuracy or the reliability of what Dr Jacmon might have understood of the applicant's claims. However, in so far as Dr Jacmon’s prognosis should the applicant be returned to Egypt, it was not suggested by the applicant that the report has been offered as evidence of any difficulties by him in presenting his case or any risk of future psychological harm. The applicant attended the hearing and presented oral evidence to the Tribunal without any difficulties. Having carefully observed him at the hearing, the Tribunal is satisfied that the applicant was not hampered by his state of mental health to give evidence and make submissions. The Tribunal is not satisfied that there is a real chance that the Applicant will suffer persecution for a Convention reason as a result of his psychological health. The Tribunal is not satisfied that there are substantial grounds for believing, as a necessary and foreseeable consequence of him being [removed] from Australia to Egypt, there is a real risk he will suffer significant harm in relation his psychological health.”

    (Emphasis added.)

1. As stated above, the RRT’s concerns and findings in respect of Dr Jacmon’s report and the weight it gave that evidence would appear to be open to it on the evidence and material before it and for the reasons it gave. In particular, the RRT noted that the applicant did not suggest that Dr Jacmon’s report was being provided as evidence of any difficulties by the applicant in presenting his case of any risk of future psychological harm. Otherwise, the RRT placed little weight on Dr Jacmon’s report as corroborative of the applicant’s claimed experiences. However, the RRT stated that it did not draw any adverse credibility inferences on the basis of any inconsistencies between the applicant’s evidence of his claimed experiences and the account of those experiences given by the applicant to Dr Jacmon, as disclosed in the report of Dr Jacmon.

2. Accordingly, Ground 2 would appear to have no, or no reasonable, prospect of success.

3. In the circumstances, I am not satisfied that the grounds of the applicant’s application seeking judicial review of the RRT’s decision have sufficient prospects of success such that it would be in the interest of justice to extend time to the applicant to pursue those grounds.

4. In the circumstances, the application for an extension of time has little or no prospect of success. In such circumstances, the applicant’s application today to reinstate the matter, having failed to appear at the hearing on 23 June 2015, has insufficient prospects of success such that it would be appropriate to set aside the Court’s Orders made on that day.

5. I note that in the Application in a Case before the Court this morning, filed on 30 July 2015, the applicant attached a copy of his submissions filed in support of the proceeding that was heard by the Court on 23 June 2015. Those submissions were set out in full by me in reasons given by me on that day and at that time for dismissing the applicant’s proceeding (see SZVZY v Minister for Immigration and Border Protection & Anor [2015] FCCA 1731).

6. Accordingly, the Application in a Case, filed on 30 July 2015, should be dismissed, with costs.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate:

Date: 30 September 2015